United States Department of Transportation, Federal Aviation Administration (Agency) and National Air Traffic Controllers Association (Union)

XX FLRA No

64 FLRA No. 100

FEDERAL
LABOR RELATIONS AUTHORITY

WASHINGTON,
D.C.

_____

UNITED STATES
DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION
ADMINISTRATION

(Agency)

and

NATIONAL AIR
TRAFFIC CONTROLLERS ASSOCIATION

(Union)

0-AR-4102

_____

DECISION

March 17, 2010

_____

Before the
Authority: Carol Waller Pope, Chairman, and

Thomas M. Beck and
Ernest DuBester, Members

Decision by
Chairman Pope for the Authority

I. Statement of the Case

This matter is before the Authority
on exceptions to an award of Arbitrator Michael S. Jordan filed by the Agency
under § 7122(a) of the Federal Service Labor-Management Relations Statute (the
Statute) and part 2425 of the Authority’s Regulations. The Union filed an opposition to the Agency’s exceptions.

In his original award (the original award), the
Arbitrator denied the Union’s request for attorney fees. Subsequently, the
Arbitrator issued an Addendum Award (the fee award) granting attorney fees.
The Agency excepts to the fee award.[1]

For the reasons that follow, we
deny the exceptions.

II. Background and
Arbitrator’s Awards

As relevant here,
in the original award, the Arbitrator found that management improperly issued
the grievant a fourteen-day suspension, and he sustained the grievance. As
relevant here, the Arbitrator stated:

No award of attorney’s fees is merited
here in light of the facts or the terms of the National Agreement relevant
here. Accordingly, attorneys’ fees are denied. In the event there is a
disagreement or question regarding implementation, computation, or calculation
of the remedy, the arbitrator retains jurisdiction until such time as all those
matters are resolved and the award is fully implemented.

Original Award at 23-24.

Subsequently, the Arbitrator, the Union’s representative, and the Agency’s representative participated in a conference call
(the conference call) and agreed to a briefing schedule regarding attorney fees.
Consistent with that schedule, the Union filed with the Arbitrator an
application for attorney fees, and the Agency filed a response thereto.

The Arbitrator then issued the fee award, which
he stated was “in response to the [parties’] agreement for me to resolve this
issue regarding attorney fees in furtherance of the reserved judgment.” Fee
Award at 2. The Arbitrator stated that, “[t]o the extent that any language in
the prior award in this case holds to the contrary regarding attorney fees,
that language is vacated and this . . . award is deemed to be controlling.” Id. at 15. The Arbitrator acknowledged his “own failure” to clarify previously
whether the Union was reserving the issue of fees until after the original
award. Id. at 12. The Arbitrator stated that it would be a “gross
injustice” to have a party suffer as a result of his misunderstanding. Id.at 13. Moreover, he rejected the Agency’s claim that he lacked authority
under the principle of functus officio[2],
stating that, “in addition to the equities[,]” the functus officio
doctrine did not apply because, during the conference call following the
initial award, “[i]t was agreed by and announced by the advocates that the
parties would be allowed to submit briefs and an award should then follow[.]” Id. Therefore, according to the Arbitrator, “the parties have, in effect, also
‘re-vested’ jurisdiction . . . for the limited purpose of addressing the
appropriateness of awarding attorney fees in this matter.” Id.

The Arbitrator granted the Union’s request for fees, including fees for its Staff Representative, a non-attorney, as
well as the Acting Director of Labor Relations, an attorney who oversaw the
Staff Representative’s work. In this regard, the Arbitrator stated that the
Authority’s decision in United States Department of Transportation, Federal Aviation
Administration, Washington, D.C., 63 FLRA 492, recons. den. 63 FLRA
653 (2009) (FAA), where fees were awarded for work performed by a
non-attorney, was “controlling precedent . . . to consider the relationship of
advocate, attorney, and grievant to be sufficient under the circumstances to meet
the standards for an award of attorney fees. Nothing in th[is] matter is
materially different[]” from FAA. Fee Award at 14. The Arbitrator
determined that the Union incurred “necessary attorney fees,” and he granted
the Union’s request. Id. at 15.

III. Positions of the Parties

A. Agency’s Exceptions

The Agency argues that the Arbitrator exceeded
his authority by awarding attorney fees. In this connection, the Agency
asserts that, in the original award, the Arbitrator expressly considered the
issue of attorney fees and declined to award them, retaining jurisdiction over
only limited matters that did not include fees. The Agency asserts that,
except with respect to those limited matters, the Arbitrator’s authority in
this matter ceased with the issuance of that award. According to the Agency,
it never agreed that the Arbitrator had jurisdiction to issue the fee award and
that, in the conference call subsequent to the original award, it agreed only
that the issue could be briefed. The Agency states that, after it received the
Union’s supplemental brief, it raised the issue of functus officio.[3]

Even assuming the Arbitrator did not exceed his
authority, the Agency maintains that the fee award is contrary to law,
regulation and public policy. Citing 5 C.F.R. § 550.807(f), the Agency
asserts that the award of fees for services provided by the Union’s Staff
Representative should be set aside because, according to the Agency, that
individual is not a law clerk, paralegal, or law student.[4]
The Agency also asserts that the Staff Representative was not assisting anyone
as required by § 550.807(f), but was performing her regular job duties. The
Agency further argues that the award of fees for services of the Union’s Acting Director of Labor Relations should be set aside because that individual’s
role was limited to reviewing the Staff Representative’s work and preparing an
affidavit seeking fees for his services. According to the Agency, there is no
showing that this matter required any attorney time, or that the attorney time
expended on it served any purpose other than to generate a basis for a fee
claim.

B. Union’s
Opposition

The Union asserts that the parties, including the Agency, agreed that the Arbitrator had
authority to resolve the request for attorney fees. Opp’n at 5-8. The Union also asserts that an arbitrator may retain jurisdiction after issuing an award on the
merits for the purpose of resolving attorney fees. Id. at 9 (citations
omitted).

With regard to the fees awarded, the
Union contends that the Merit Systems Protection Board (MSPB) has held that
direct supervision by an attorney is necessary for awarding fees for work
performed by a non-attorney. For support, the Union cites: Anderson v. Gov’t
Printing Office, 55 M.S.P.R. 548 (1992) (Anderson); Horton v. U.S. Postal Serv., 7 M.S.P.R. 232 (1981); and Mitchell v. U.S. Postal Serv.,
6 M.S.P.R. 22 (1981) (Mitchell). The Union asserts that the Staff
Representative performed her duties under the active supervision of an attorney,
the Union’s Acting Director of Labor Relations, and compensation is available
for non-attorneys who assist in representation provided by an attorney. Also
according to the Union, the rationale for including charges for such
non-attorneys in fee awards is that they provide necessary services which, were
they performed by attorneys, would be significantly more costly. Opp’n at 14.

IV. Analysis and Conclusions

A. The
Arbitrator did not exceed his authority.

An arbitrator exceeds his or her authority when
the arbitrator fails to resolve an issue submitted to arbitration, resolves an
issue not submitted to arbitration, disregards specific limitations on his or
her authority, or awards relief to persons who are not encompassed by the
grievance. See U.S. DOD, Army & Air Force Exch. Serv., 51 FLRA
1371, 1378 (1996). As set forth supra, note 2, under the principle of functus
officio, once an arbitrator has accomplished the resolution of the matter
submitted to arbitration, the arbitrator is without further authority. See AFGE,
Local 2172, 57 FLRA 625, 627 (2001). As such, unless an arbitrator retains
jurisdiction after issuance of the award, the arbitrator has no authority to
take any further action without the joint request of the parties. See id.

In this matter, the Union noted its intent to
request attorney fees during the arbitration proceedings, both in its opening
statement at the hearing (Opp’n, Attach. 8 at 15) and in its brief to the
Arbitrator (Opp’n, Attach. 9 at 33). Although finding a violation of the
collective bargaining agreement and granting backpay to the grievant, the
Arbitrator expressly denied attorney fees. As such, and with exceptions not
relevant here[5],
the Arbitrator had no authority to issue the fee award absent the parties’
agreement.

However, the Arbitrator found, and the Union asserts,
that the parties agreed to “re-vest[]” him with jurisdiction to issue an award
resolving the Union’s request for attorney fees. Fee Award at 13; Opp’n at
5-8. The Agency denies that there was such an agreement. Exceptions at 5. In
order to determine whether the Arbitrator exceeded his authority by resolving this
issue, it is first necessary to determine whether the Arbitrator erred in
finding that the parties reached an agreement to place the attorney-fee issue
before the Arbitrator.

Consistent with precedent, whether the parties
reached agreement on this issue is a question of fact. Cf. U.S. Dep’t of
Homeland Sec., U.S. Customs and Border Prot., JFK Airport, Queens, N.Y., 62
FLRA 129, 131-32 (2007) (question of existence of a collective bargaining
agreement is a question of fact). Thus, in effect, the Agency is challenging
the Arbitrator’s factual finding that the parties reached agreement to place
the attorney-fee issue before the Arbitrator. Accordingly, we construe this claim
as an exception that the award is based on a nonfact. Id. at 132 n.4.

To establish that the award is based on a
nonfact, the Agency must show that a central fact underlying the award is clearly
erroneous, but for which the arbitrator would have reached a different result.
E.g., U.S. Dep’t of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993) (Lowry). However, the Authority will not find an
award deficient as based on a nonfact on the basis of an arbitrator’s
determination on any factual matter that the parties disputed at arbitration. Id. at 594.

The Agency asserts that, during the conference
call, its representative -- a different representative from the one filing
exceptions -- preferred “not to argue the issue over the phone, and consented
to briefing on whether the Arbitrator’s award was erroneous as a matter of
law.” Exceptions at 5. However, in neither the exceptions nor the response to
the Union’s request for fees does the Agency explicitly deny that the parties
agreed during the conference call that the Arbitrator was permitted to resolve
the request for attorney fees. Thus, the Agency has not demonstrated that the
Arbitrator’s finding is clearly erroneous. Moreover, even if we construed the
Agency’s response to the Union’s request for fees as denying that the parties
agreed that the Arbitrator could resolve the attorney-fee request, that denial
would demonstrate that the issue was disputed before the Arbitrator and, as a
result, does not constitute a nonfact. See Lowry, 48 FLRA at 594.

As the Agency does not demonstrate that the
Arbitrator erred in finding that the parties agreed to place the attorney-fee
issue before him, the Agency fails to establish that the Arbitrator resolved an
issue that was not before him. Accordingly, the Agency does not demonstrate
that the Arbitrator exceeded his authority, and we deny the exception.

B. The
award of attorney fees is not contrary to law.

5 C.F.R. § 550.807(f) provides, in pertinent part, that “[t]he
payment of reasonable attorney fees shall be allowed only for the services of
members of the Bar and for the services of law clerks, paralegals, or law
students, when assisting members of the Bar.” As the Authority has recognized,
the rationale for allowing fees for time spent by such law clerks, paralegals
or law students is that they provide necessary services that, if performed by
attorneys, would be more costly. See FAA, citing Fed. Deposit Ins.
Corp, Div. of Info. Res. Mgmt, Atlanta, Ga., 53 FLRA 1657, 1661 (1998)
(FDIC). In FDIC, the arbitrator found that a national counsel,
an attorney, was responsible for directing and overseeing all aspects of the
case and that a field representative performed services as a paralegal under
the supervision of, and as the agent for, the national counsel. The Authority
upheld the award of fees for the paralegal services of the field representative
as consistent with case precedent and § 550.807(f). In addition, the
Authority noted that in at least two decisions, the MSPB awarded attorney fees
for the services of law students and legal assistants. Seeid.
(citing Anderson, 55 M.S.P.R. 548, and Mitchell, 6 M.S.P.R. 22).
In both decisions, the MSPB found that an award of fees for the services of
non-attorneys was appropriate because their involvement was under the direct
supervision of, and as the agent for, an attorney. In FAA, the
Authority applied FDIC and found that a non-attorney, union staff
representative was entitled to attorney fees for reasons similar to those in FDIC.
See 63 FLRA at 493-94.

As discussed above, the Arbitrator
considered FDIC materially indistinguishable from this case. Moreover, it
is clear from the fee award as a whole that the Arbitrator found that the Union’s Acting Director of Labor Relations was responsible for directing and overseeing Staff
Representative’s work. Thus, the Arbitrator effectively found that the Staff
Representative worked under the direct supervision of an attorney, as required
by § 550.807(f). Moreover, by finding that the Union incurred “necessary
attorney fees,” the Arbitrator effect